Texas v. Pennsylvania and the Political-Question Doctrine, 2021
U. Ill. L. Rev. Online
Available at: https://repository.uchastings.edu/faculty_scholarship/1840
In the wake of the 2020 presidential election, Texas sued four other states in an original action in the U.S. Supreme Court arguing that those states violated, among other constitutional provisions, the Electors Clause. One issue the Supreme Court did not reach in the case—and has never reached before—was the impact of the political-question doctrine on claims under the Electors Clause. This short essay takes up that issue. Analyzing the applicability of the political-question doctrine to the Electors Clause, I conclude that the political-question doctrine operates as only a narrow constraint on Electors Clause claims. Applying those principles, I conclude that Texas’s claims were not barred by the political-question doctrine, though portions of the relief Texas sought may have been.
University of Illinois Law Review Online